9.Penn Central Transportation Co. v. New York City, 438 U.S. 104
(1978). An earlier Supreme Court case, Berman v. Parker, 348
U.S. 26 (1954), gave strong support in dicta to the concept of
governmental condemnation action for aesthetic purposes when Justice
Douglas wrote: "The values [public welfare] represented are spiritual
as well as physical, aesthetic as well as monetary. It is within the
power of the legislature to determine that the community should be beautiful
as well as healthy, spacious as well as clean, well-balanced as well
as carefully patrolled. In the present case, the Congress and its authorized
agencies have made determinations that take into account a wide variety
of values. It is not for us to reappraise them. If those who govern
the District of Columbia decide that the Nation's Capitol should be
beautiful as well as sanitary, there is nothing in the Fifth Amendment
that stands in the way. Once the object is within the authority of Congress,
the right to realize it through the exercise of eminent domain is clear...
the means by which it will be attained is also for Congress to determine"
(348 U.S. 26, p. 33). However, Berman dealt with local historic District
of Columbia ordinances and recognized that the ordinance in question
considered aesthetic values as one of many criteria encompassed by the
term "public welfare." The Penn Central decision made
it clear that individual landmarks as well as historic districts could
be protected. Justice Brennan, writing for the Majority, stated: "[H]istoric
conservation is but one aspect of the much larger problem, basically
an environmental one, of enhancing--or perhaps developing for the first
time--the quality of life for people. New York City, responding to similar
concerns and acting pursuant to a New York State Enabling Act, adopted
its Landmarks Preservation Law in 1965... The New York City law is typical
of many urban landmark laws in that its primary method of achieving
its goals is not by acquisitions of historic properties, but rather
by involving public entities in land-use decisions affecting these properties
and providing services, standards, controls, and incentives that will
encourage preservation by private owners and users" [438 U.S. 108-111
(1977)]. The court concluded that "the restrictions imposed are
substantially related to the promotion of the general welfare and not
only permit reasonable beneficial use of the landmark site but also
afford appellants opportunities further to enhance not only the Terminal
site proper, but also other properties" [438 U S. 138 (1977)].

10.
P.L. 59-209, 16 U.S.C. 431-433 (1906). The historical background of
this law is the topic of The Antiquities Act of 1906, by Ronald
F. Lee, National Park Service, Washington, DC, 1970 (NTIS order number
PB284061). See also Hal Rothman, Preserving Different Pasts: The
American National Monuments, University of Illinois Press, Chicago,
IL, 1989.

11.
Section 432 of the Antiquities Act provides that permits will be issued
for examinations, excavations and gatherings of objects when such activities
are undertaken "for the benefit of reputable museums, universities,
colleges, or other recognized scientific or educational institutions,
with a view to increasing the knowledge of such objects, and that the
gatherings shall be made for permanent preservation in public museums."
Currently, most Federal agency permits are issued under the authority
of ARPA.

12.
Maximum fine of $500 or 90 days in prison, or both. Ibid., Sec. 1.

15.
Regulations for the National Historic Landmarks Program are found at
36 CFR Part 65.

16.
P.L. 89-665, 16 U.S.C. 470-470t (1966). Those responsible for Federal
historic preservation programs and projects are to conduct them according
to the Secretary of the Interior's Standards and Guidelines for Archeology
and Historic Preservation, September 29, 1983 (48 F.R. 44716-44742).

21.
36 C.F.R. Part 60, in conjunction with Exec. Order No. 11593, Protection
and Enhancement of the Cultural Environment, May 13, 1971 (36 F.R. 8921),
implements the necessary cooperation between State and Federal agencies
to inventory and ensure the preservation of non-federally owned "sites,
structures, and objects of historical, architectural, or archeological
significance."

22.
36 C.F.R. Part 800 includes the regulations published by the Advisory
Council on Historic Preservation to implement Section 106 of NHPA. Federal
"undertakings" range from construction, rehabilitation, and
repair projects to transfers or demolition of Federal properties. Assessments
result in one of three determinations: (a) no effect; (b) no adverse
effect, i.e., one or more historic properties will be affected, but
the historic qualities that make them significant will not be harmed;
or (c) adverse effect, i.e., the undertaking will cause harm to one
or more historic properties. See the Advisory Council on Historic Preservation
publication: Fact Sheet: Working with Section 106, Washington,
DC, revised September, 1988, pp. 3-4. The basic steps to arrive at a
determination are: (1) identification and evaluation of historic properties,
with the possibility of further studies to evaluate places that may
have been considered eligible for inclusion in the National Register
but were not so registered; (2) assessment of the effects that the Federal
undertaking may have on the identified properties; (3) consultation
on adverse effects with the SHPO, Indian Tribes, property owners, and
others resulting in an agreement outlining measures to reduce, avoid,
or mitigate any adverse effect; (4) a period of time for comment by
the Advisory Council on Historic Preservation; and (5) implementation
of the particular Federal project under the terms of the agreement.
If there is a memorandum of agreement (MOA) developed during Step 3
of the Section 106 process, ACHP may review and accept it, request changes,
or decide to issue written comments. If previously unknown archeological
remains are discovered after the project has begun, the Federal agency
may choose to re-start the Section 106 process or notify the Secretary
of the Interior according to Section 4(a) of P.L. 93-291.

23.
P.L. 95-515 These amendments codify the requirement that Federal agencies
assume the responsibilities for preservation of the historic properties,
including the inventory and evaluation of archeological sites that are
owned or controlled by them. Appearing as Section 110, this requirement
is to ensure that historic preservation is fully integrated into the
ongoing programs and missions of federal agencies and to ensure that
they exercise caution so that their activities do not destroy uninventoried
sites. Section 110 guidelines are located at 53 F.R. 4727-4746 (February
17, 1988).

27.
The NHPA (Note 26) also authorizes project and project planning funds
to be used in this manner. A Federal agency may exceed the 1 percent
limitation with the concurrence of the Secretary of the Interior, which
is based upon a review by Interior's Departmental Consulting Archeologist.

31.
Neither ARPA itself nor its implementing regulations provide precise
definitions of "historic" and "prehistoric." Rather,
the emphasis is on the statutory definition of "archaeological
resource," which means "any material remains of human life
or activities which are of archaeological interest [and] at least 100
years of age." "Archaeological interest" is defined in
the uniform regulations as "capable of providing scientific or
humanistic understandings of past human behavior, cultural adaptation,
and related topics"; and "material remains" is defined
as "physical evidence of human habitation, occupation, use, or
activity, including the site, location, or context in which such evidence
is situated." There follows an extensive list of classes of material
remains, which will be considered archeological resources, but it should
be understood that the list is not all-inclusive. 18 C.F.R. Part 1312.3
(1984).

35.
For a state-by-state analysis of alternative statutes see Appendix
1.

36.
Although there is considerable documentation in some Federal agency
files, e.g., NPS and USDA Forest Service records, as to Antiquities
Act violations, the citations for those violations appear to be the
exception rather than the norm. In fact, it is not clear as to how the
various agencies have coordinated their activities in order to enforce
the Antiquities Act, and there is some confusion as to what has actually
constituted a violation. See the NPS Antiquities Act files, W34, 1949
- 1981, with accompanying correspondence. Thus, a legislative objective
for ARPA was to provide improved enforcement authority.

For an anecdotal, yet thorough discussion of ARPA in
legislative process, see Janet L. Friedman, "A Drama in Three Acts,"
and Laura L. Beaty, "ARPA Enacted: The Legislative Process,"
both in an edition of American Archeology, devoted to "A
History of the Archeological Resources Protection Act: Law and Regulations,"
Vol 5, No.2, 1985, pp. 82 and 90.

Final Uniform Regulations were issued at 43 C.F.R. Part
7 (Department of the Interior), 36 C.F.R. Part 296 (Department of Agriculture),
18 C.F.R. Part 1312 (Tennessee Valley Authority), and 32 C.F.R. Part
229 (Department of Defense), first published at 49 F.R. 1017-1034 (1984);
Supplemental Regulations at 52 F.R. 9165-9170 (Department of the Interior)
(1987); and amendments to the uniform regulations at 52 F.R. 47720-4722
(1987).

40.
The DOTA Section on Preservation of Public Areas [49 U.S.C. 1653(f)]
does not specifically define "historic site," but in Stop
H-3 Association v. Coleman [(1976, CA9 Hawaii) 533 F2d 434, denied
429 US 999, 97 S. Ct. 526, 50 L. Ed 2d 610], the Court held that the
determination made by the Secretary of the Interior that a site "may
be eligible for inclusion in the National Register of Historic Places"
was sufficient to establish historic significance so as to have the
site come under the mandates of 49 U.S.C. 1653(f) and 23 U.S.C. 138.
Section 1653(f) requires that the Secretary of Transportation "shall
cooperate and consult with the Secretaries of Interior, Housing and
Urban Development and Agriculture, and with the States in developing
transportation plans and programs that include measures to maintain
or enhance the natural beauty of the lands traversed... with the stipulation
that the Secretary of Transportation not approve programs which will
require the use of any publicly owned land from ... an historic site
of national, State or local significance."

42.
42 U.S.C.4332(1) of NEPA specifically identifies such considerations
for the EIS as "aesthetically and culturally pleasing surroundings...preserv(ation)
of important historic, cultural and natural aspects of our national
heritage...and an approach to the maximum attainable recycling of depletable
resources."

44.
P.L. 95-341 (1978). Applicable regulations promulgated pursuant to Section
10(a) are located at 43 C.F.R. Part 7.7 and 7.35, regarding ARPA permits.
Specific details regarding consultation, permits, and notifications
to Indian Tribes are located at 25 C.F.R. Part 262, Protection of Archaeological
Resources, Bureau of Indian Affairs. These regulations were proposed
on January 25, 1990 (55 F.R. 2580-2583) and are expected to be published
in final in 1991.

49.
The LOOT Clearinghouse provides case reports relevant to this statute.
18 U.S.C. 1632 also provides penalties for those who aid and abet activities
covered under 18 U.S.C. 1631.

50.
Statutes such as these do not contain language specifying that artifacts
must be found on the property; the language simply authorizes the State
"by gift or purchase" to acquire private land that is deemed
to be of historic significance. See, for example: Alaska c. 35, s. 41.35.060;
or N.M. 18-6-6D and 18-6-10C.

51.
A.R.S. 41-865 and A.R.S. 41-866 (effective July 5, 1990). Amendments
also were made to the existing public health statutes governing disinterments
of dead bodies to harmonize existing law with the new laws (A.R.S. 36-861,
effective July 5, 1990).

52.
The annual report to Congress on the Federal archeology program is based
upon Federal agency responses to a questionnaire distributed at the
end of each fiscal year. The most recent publication, Federal Archeology:
The Current Program (Department of the Interior, Washington, DC.
1989 GPO order number S/ N 024-005-010-572), covers activities in fiscal
years 1985 and 1986. A draft report, Federal Archeology: 1987 Activities
and Results, covering activities through fiscal year 1987 is nearing
completion. See Ch. 5, p.2. Statistics for subsequent years have been
compiled for use in this Technical Brief.

53.
"Four Corners" refers to the place where the State lines of
New Mexico, Utah, Colorado, and Arizona intersect. It is an area rich
in prehistoric sites from the archeological periods known as Pueblo
I, II, and III. Included in these kinds of sites are National Park Service
units such as Mesa Verde and Chaco Canyon.

56.
Examples of such authorities are State statutes for trespass or cultural
properties protection Statutes, Federal criminal statutes such as 18
U.S.C. 1361, Damage to Government Property, or National Park Service
and USDA Forest Service regulations such as 36 C.F.R Part 2.1(a)(1)(ii),
taking of potsherds from public land, or 36 C.F.R. Part 2. 10(B)(10),
camping outside a designated area.

57.
In total, the Forest Service, Bureau of Land Management, Fish and Wildlife
Service, and National Park Service manage nearly 700 million acres of
Federal land.

59.United States v. Jacques, CR 83-129-FR (D. Or., 1983), lasting
three years. See also, the Channel Islands case listed in the LOOT clearinghouse
that began in 1987 and involved more than 20 defendants (See Note
78).

60.
Authority for the annual report is provided by the Reservoir Salvage
Act of 1960 (P.L. 86-523; 74 Stat. 220, 221; 16 U.S.C. 469) as amended
by the Archeological and Historic Preservation Act of 1974 (P.L. 93-291;
88 Stat. 174; 16 U.S.C. 469). Under this Act the Secretary of the Interior
is to prepare and submit an annual report to the Congress each fiscal
year on the projects, results and costs undertaken in the Federal archeology
program. In addition, the National Historic Preservation Act of 1966
(P.L. 89-665; 80 Stat. 915; 16 U.S.C. 470) as amended (P.L. 91-243;
P.L. 93-54. P.L. 94-422, P.L. 94-458, P.L. 96-199, P.L. 96-244, P.L.
96-515) requires Federal agencies, to the extent permitted by law and
within available funds, to provide information, suggestions, estimates,
and statistics to further the purposes of the Act. The report also is
mandated by the Federal Land Policy and Management Act of 1976 (P.L.
94-579; 90 Stat. 2743; 43 U.S.C. 1701), which is the primary basis for
managing cultural resources on the public lands. Finally, ARPA directs
the Secretary of the Interior to provide a separate component of the
annual report that deals specifically with its provisions, including
the permitted and unauthorized uses of archeological resources on public
lands.

66.
Prior to the issuance of ARPA uniform regulations, this section to some
extent created a due process problem since there were no mechanisms
for the issuance of permits. Therefore, agencies published notices in
the Federal Register clarifying that permits pending ARPA regulations
would continue to be processed under the applicable sections of the
Antiquities Act. Such publication also served as a reminder that ARPA
neither amended nor replaced the Antiquities Act. See D. Green, "Prosecuting
Under ARPA: What to Do Until the Regulations Arrive," in Cultural
Resources Law Enforcement, p. 64, note 49.

67.
This fourth proof defines the line between a felony and a misdemeanor,
the later involving damages of $500 or less. Felony convictions for
ARPA violations through 1984 carry a fine of up to $20,000 and two years
in prison, or both, for the first offense. After 1984 the Comprehensive
Crime Control Act (18 U.S.C. 3623) standardized maximum penalty amounts,
allowing up to $100,000 for the first misdemeanor offense, and up to
$250,000 for the first felony offense committed by individuals. The
respective amounts are doubled when an organization, rather than an
individual, has committed the violation. Although ARPA exempts arrowheads
from surface collection, such collection is still in violation of the
Antiquities Act, except in the Ninth Circuit under Diaz, as well as
under the Theft of Government Property statute, 18 U.S.C. 641, (See
Note 50).

68.
In this case, Shumway was found not guilty as to the two felony ARPA
counts, but guilty as to destruction of government property.

69.
K. Jones and Guevara were sentenced each to 1 year in jail and a $1,000
fine; while T. Jones received an 18-month jail sentence and $1,000 fine.

70.
Civil fines based upon site damage assessments were levied in Brady
(See page 7), but the $38,479.42 was declared uncollectible in 1982.
Collection of another civil fine of $18,216 for damage to 11 separate
areas in a 1981 case (See LOOT Clearinghouse) was attempted under the
Federal Collections Act and declared uncollectible in 1984.

73.
These figures are misleading to some extent, since in one case prosecuted
under another statute there were a total of 20 defendants. See LOOT
Clearinghouse report on the Channel Islands shipwreck case prosecuted
under NOAA regulations and the California Penal Code (See Note
76).

76.
"Shipwreck Looters Fined $132,000 in History's Biggest Case,"
Channel Islands National Marine Sanctuary Press Release, October 25,
1990. Altogether in this case, 20 individuals were charged with 52 civil
and criminal violations of Federal and State laws. The largest single
civil fine was $100,000 assessed against the dive boat operator for
violating National Oceanic and Atmospheric Administration regulations
regarding historic shipwrecks within a National Marine Sanctuary.

77.
Lack of access aside, some known offenders will not be deterred. Convicted
looters and vandals simply move their activities into other States.

78.
It is important to note that the second jury trial felony conviction
under ARPA occurred in 1990. The "Dry Hill" case involved
10 defendants who looted an unrecorded site in the Cherokee National
Forest that contained burial remains of the Eastern Band of the Cherokee.
The case resulted in 10 felony convictions, 4 misdemeanor criminal convictions,
$3,290.62 assessed in lines, $11,500 ordered in restitution, and prison
sentences varying from 6 months to 22 months for some of the defendants.
Additional penalties included probationary periods of up to 5 years,
with 3 defendants required to provide 300 hours each in community service.
All defendants were banned from the National Forest for their respective
probationary periods. [United States v. Charlton No. 290-73,
E.D. Tennessee, October 1990].

83.
The 1988 report on the annual questionnaire from TVA states the frustration:
"We have hundreds of sites being looted. We are documenting the
destruction, but we are seldom able to document the individuals doing
the digging, or how many acts of digging have produced the appalling
conditions we document."